Court File and Parties

COURT FILE NO.: CV-18-595124 DATE: 20181213 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Paul Bliss, Plaintiff/Responding Party AND: CTV Television Network Ltd., Bell Media Inc., Defendants/Moving Parties

BEFORE: H. McArthur J.

COUNSEL: N. Cartel, for the Plaintiff/Responding Party M. Henry, M. Tremblay and J. Lefebvre, for the Defendants/Moving Parties

HEARD: November 29, 2018

Endorsement

H. MCARTHUR J.:

Introduction

[1] Paul Bliss was a well-known CTV news reporter. On January 26, 2018, Bridget Brown published a blog in which she alleged that an award-winning CTV reporter (whom she did not name) had sexually harassed her when she was a young reporter, after giving her a tour of the Legislature building at Queen’s Park. Mr. Bliss contacted CTV management on the same day to advise that he had given Ms. Brown a tour of the building years ago, but that he did not engage in any inappropriate conduct. Mr. Bliss was told that he would be taken off the air before the 6:00 p.m. newscast.

[2] That night, CTV aired three separate news stories about the allegations made by Ms. Brown. By that time, Ms. Brown had confirmed with CTV that Mr. Bliss was the man she had written about in her blog. Each of the three stories named Mr. Bliss. The latter two stories had salacious details from Ms. Brown’s blog. The final story also featured a number of pictures of Mr. Bliss, including a dated photo of Mr. Bliss with two cheerleaders.

[3] Following an investigation (in which two other women from the workplace made allegations that they had had a sexual relationship with him) CTV fired Mr. Bliss. Mr. Bliss’ employment was covered by a collective agreement and he filed a grievance with the union over his termination. He also brought an action in the Superior Court claiming defamation for the news stories run by CTV.

[4] There are now two motions before me stemming from the above. First, CTV Television Network Ltd. and Bell Media Inc. (CTV/Bell Media) bring a motion pursuant to r. 21.01(3)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, arguing that the court has no jurisdiction over the subject matter of the action as it is governed by a collective agreement.

[5] Second, in responding to the above motion, Mr. Bliss filed affidavit evidence. CTV/Bell Media also bring a motion to strike out portions of Mr. Bliss’ affidavits, on the basis that they contain irrelevant information. Both sides agree that if I am able to find in Mr. Bliss’ favour on the jurisdiction motion without considering the impugned affidavit material, then it is not necessary to deal with the motion to strike parts of his affidavit.

[6] For the reasons set out below, I have determined that this court has jurisdiction to hear Mr. Bliss’ defamation action. I was able to reach this conclusion without resort to the challenged portions of Mr. Bliss’ affidavits. As a result, I will not consider the motion to strike out portions of his affidavits.

[7] I do not propose to outline the facts at the outset, and instead will refer to them as required in my analysis. I begin with a brief overview of the applicable law.

Applicable Law

[8] The parties agree that the key issue to determine on this motion is whether the subject matter of Mr. Bliss’ action for defamation, in its essential character, arises from the interpretation, application, administration or alleged violation of the collective agreement. Where the dispute, regardless of how it may be characterized legally, arises under the collective agreement, then it is not within the jurisdiction of this court; rather, the exclusive jurisdiction to deal with it lies with the labour tribunal: Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, at paras. 43, 51-52.

[9] In determining the jurisdiction issue, the court must consider the “essential character” of the dispute and the ambit of the collective agreement. Weber makes clear that in considering the essential character of the dispute, the court should focus on the facts surrounding the dispute, not on the legal characterization of the action. It does not matter how the claim is framed if the essential character of the dispute arises from the collective agreement. As explained by Laskin J.A. in Piko v. Hudson’s Bay Co., [1998] O.J. No. 4714 (C.A.), leave to appeal to S.C.C. refused, 27087 (19 January 1999), at para. 9, “[p]arties cannot avoid arbitration simply by pleading a common law tort.”

[10] CTV/Bell Media relies on a number of cases where the courts have held that the defamation claim brought by a particular plaintiff fell within the exclusive jurisdiction of an arbitrator. For example, in Giorno v. Pappas, [1999] O.J. No. 168 (C.A.), Ms. Giorno brought an action for defamation against Mr. Pappas after he wrote a memorandum criticizing her work and circulated it to a number of senior managers and union representatives. In finding that the claim arose under the collective agreement, the court noted that the memorandum was written and circulated in the workplace; it addressed a workplace issue; Mr. Pappas worked on the same team as Ms. Giorno; and the recipients of the memorandum were all people who could have been expected to be informed of a problem in Ms. Giorno’s working relationship with Mr. Pappas. Given the employer’s obligation to provide a safe and healthy workplace under the collective agreement, the essential character of the conduct complained of was covered by the collective agreement.

[11] CTV/Bell Media also relies on Bhaduria v. Toronto Board of Education, [1999] O.J. No. 582 (C.A.), leave to appeal to S.C.C. refused, 27259 (19 April 1999). There, Mr. Bhaduria advanced a claim of defamation based on the publication in the Board’s minutes of the resolution approving the termination of his teaching contract, along with the reason for the termination. The court noted that the Board was under an express statutory obligation to give reasons and the reasons dealt with Mr. Bhaduria’s status as an employee. Thus, the essential character of his claim for defamation pertained to his termination from employment and arose under the collective agreement.

[12] CTV/Bell Media also points to Sloan v. York Region District School Board, [2000] O.J. No. 2754 (C.A.), leave to appeal to SC.C. refused, 28150 (27 September 2000). There, Mr. Sloan brought a claim for defamation based on unfavourable reviews of his performance as a teacher, which led to his termination. The court had little difficult in finding that this claim arose under the collective agreement.

[13] Finally, CTV/Bell Media relies on the recent decision of De Montigny v. Roy, 2018 ONCA 884. In that case, Ms. De Montigny had brought her claim against former co-workers who had made statements to their common employer about her during a workplace harassment investigation. The Court of Appeal upheld the decision of the motion judge in finding that Ms. De Montigny’s defamation claim was entirely regulated by the collective agreement to which the parties were subject as unionized workers.

[14] Mr. Bliss counters by pointing to decisions where the court has found that the claim of defamation did not arise from the collective agreement. For example, in Santamaria v. James and Niziol, [2003] O.J. No. 472 (S.C.), the plaintiff and defendants were employed by the same school. The plaintiff brought a claim alleging, among other things, defamation for comments made at a school meeting, at a staff meeting, and during the course of the work day at school. The defendants brought a motion for summary judgment on the basis that pursuant to Weber, the court did not have jurisdiction to hear the claims as they arose under the collective agreement. While noting that all of the events took place in the workplace, the court found that the dispute did not expressly or inferentially arise from the collective agreement. The court noted that the alleged defamatory comments did not, for the most part, concern the employee’s character, history or capacity as an employee and the comments were not made to persons who would be expected to be informed of workplace problems. Thus, the claim did not arise from the collective agreement.

[15] Mr. Bliss also relies on Shearer v. Keenan, 2017 ONSC 7171. In that case, Ms. Shearer was a teacher who had voluntarily produced the school’s spring concert, in which the students sang “Land of the Silver Birch”. Afterwards, the principal and vice-principal sent an email to the parents/guardians of the students, apologizing for the performance as it had been brought to their attention that the song was “inappropriate and racist”. Ms. Shearer then brought an action for libel. The court noted that Ms. Shearer had not been disciplined for her work on the spring concert and that her work was unpaid and voluntary activity. The court thus held that the dispute did not arise from the collective agreement.

[16] Mr. Bliss also points to Piko as supporting his position. In that case, Ms. Piko sued her employer for malicious prosecution after she was charged with fraud for a workplace incident. Laskin J.A. held that the claim did not arise under the collective agreement as her employer went outside of the collective agreement itself when it resorted to the criminal courts.

[17] As can be seen from the above cases, determining whether a dispute arises from a collective agreement turns on the specific facts in that particular case. I turn now to my analysis of whether the facts in Mr. Bliss’ case support that the dispute arises under the collective agreement.

Analysis

[18] CTV/Bell Media argues that Mr. Bliss’ claim arises from and is connected to his employment. It argues that as part of the collective agreement, CTV/Bell Media had an obligation to investigate the allegations of sexual harassment made against Mr. Bliss. It also had a duty to take the action it did in suspending Mr. Bliss in response to the allegations. Moreover, CTV/Bell Media submits that it was in its capacity as employer that it announced Mr. Bliss’ suspension pending an investigation; CTV/Bell Media had a responsibility to its viewers to advise them why Mr. Bliss was no longer appearing on the air. Thus, CTV/Bell Media argues, the alleged defamatory statements directly relate to Mr. Bliss’ employment status with CTV/Bell Media and to employment-related actions taken by CTV/Bell Media following allegations concerning the workplace. While acknowledging that there may be a public relations aspect to the coverage, CTV/Bell Media submits that such public relations activity arises under the collective agreement.

[19] Mr. Bliss counters that information about his employment status was broadcast to the world at large, rather than simply communicated to those one would expect to be informed of workplace issues. This, he argues, distinguishes his case from those relied upon by CTV/Bell Media. By electing to disclose Mr. Bliss’ suspension, and by detailing the allegations to its many viewers in the way that it did, CTV/Bell Media moved the dispute out of the context of the collective agreement and into the realm of salacious news reporting for the purposes of a headline-grabbing news story.

[20] In assessing the positions of the parties, in my view it is important to look at how the news coverage of Mr. Bliss’ suspension developed and evolved over the course of the three newscasts on January 26, 2018.

[21] The first story ran on the 6:00 p.m. Toronto newscast. The clip at issue aired approximately 16 minutes into the news program. The story itself was brief and to the point, lasting only 15 seconds. The anchor simply advised that allegations had been made against Mr. Bliss, CTV took the matter seriously and Mr. Bliss had been suspended pending an investigation.

[22] The second story ran during the 11:00 p.m. national newscast. This clip ran approximately eight minutes into the program. This story was 49 seconds, more than triple the length of the first clip. The clip included salacious details from Ms. Brown’s blog, which were shown as text on screen. The text shown on screen included the words “kissing”, “oral sex” and “ejaculated”.

[23] The final story ran on the 11:30 p.m. Toronto newscast and was the lead story. This story ran for two minutes and 15 seconds. It started with the anchor saying, “The arm of the ‘Me Too’ movement reaches into CTV’s own backyard.” The anchor also noted that Mr. Bliss was the “latest in a string of high-profile men” facing sexual harassment allegations. The news clip then shifted to a reporter covering the story, who noted that Mr. Bliss had reported on sexual harassment allegations made against Patrick Brown, but that now “Paul Bliss himself is at the center of accusations.” The story featured salacious details from Ms. Brown’s blog, with a reporter explaining that it was alleged that Mr. Bliss had “exposed himself” to Ms. Brown and committed a lewd act. The story also featured a number of pictures of Mr. Bliss. One photo showed Mr. Bliss from years before, with a grin on his face, standing with two cheerleaders. The story closed by remarking that while CTV had reached out to Mr. Bliss for a comment, he had failed to respond.

[24] There is a clear progression of the news clips over the course of the three broadcasts. The first 15 second clip could arguably support CTV/Bell Media’s submission that the newscast was related to its obligations as an employer arising from the collective agreement. It merely announced the actions it was taking, as an employer, in response to allegations of workplace misconduct by one of its employees.

[25] In my view, however, the submission of CTV/Bell Media founders when the other, lengthier and more scandalous clips are considered. The latter two stories went well beyond what would be necessary from an employment perspective and entered the realm of salacious news reporting. CTV/Bell Media was not simply advising its viewers about a workplace issue; rather, CTV/Bell Media was reporting about the latest shock wave resulting from yet another ‘Me Too’ allegation against a high-profile man.

[26] The dispute relating to the alleged defamation in this matter does not arise under the collective agreement. This court has jurisdiction to hear Mr. Bliss’ action. The motion brought by CTV/Bell Media pursuant to r. 21.01(3)(a) is dismissed.

Costs

[27] Mr. Bliss is seeking partial indemnity costs in the amount of $17,499.13. If CTV/Bell Media had been successful, it would have sought partial indemnity costs in the amount of $32,256.16.

[28] Pursuant to s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, the court has a broad discretion when determining the issue of costs. Rule 57.01(1) of the Rules of Civil Procedure sets out the factors to be considered by the court when determining the issue of costs.

[29] The overall objective of fixing costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant: Boucher v. Public Accountants Council for the Province of Ontario, [2004] O.J. No. 2634 (C.A.), at para. 26; and Davies v. Clarington (Municipality), 2009 ONCA 722, at para. 52.

[30] In determining the costs issue, I have considered the factors set out in r. 57, as well as the principle of proportionality set out in r. 1.04(1.1). I keep in mind that the court should seek to balance the indemnity principle with the fundamental objective of access to justice. In my view, the costs sought by Mr. Bliss are fair and reasonable. Such an amount would clearly have been reasonably anticipated by CTV/Bell Media given that it would have claimed substantially higher costs if successful.

[31] Mr. Bliss is entitled to costs from CTV/Bell Media in the amount of $17,499.13, inclusive of HST and disbursements, payable within 60 days.

Justice Heather McArthur Date: December 13, 2018